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Cases on provocation

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Introduction

Cases on Provocation R v Pearson [1992] Crim LR 193, CA Two brothers D1 and D2 were jointly charged with the murder of their father, who had seriously ill-treated the younger D2 over a period of eight years while D1 was away from home. Allowing their appeal and substituting a manslaughter verdict, the Court of Appeal said the jury should have been told to consider the father's words and deeds towards D2 when deciding whether or not D1 had been provoked, particularly since D1 had returned home deliberately to protect D2 from his father's violence. Similarly, the courts had tried in earlier cases to lay down exactly what conduct could and what could not amount to provocation, but the Act set these precedents aside. The defendant can claim provocation where the supposedly provocative behaviour is not unlawful or unreasonable, or where he is mistaken (perhaps through voluntary intoxication) as to the meaning of the other person's behaviour, or even where the supposedly provocative behaviour was in fact a response to his own. R v Davies [1975] 1 All ER 890, CA A man D became jealous of his wife W's association with another man S, and threatened to kill him. ...read more.

Middle

On Wednesday DD and A planned to beat up V the following Sunday and break his arms and legs; this plan was duly carried out, and V died of his injuries. The trial judge withdrew the defence of provocation from the jury, there having been no evidence of any provocative behaviour during the week or at the time of V's death, and DD's conviction was upheld. R v Thornton [1992] 1 All ER 306, CA After several years of physical and mental cruelty D stabbed and killed her husband and was charged with murder. The trial judge directed the jury that the loss of self-control must have been sudden for provocation to be found, and that a response after D had "cooled down" could not give rise to this defence. D's conviction was upheld by the Court of Appeal. [A second appeal based on new evidence was subsequently allowed.] R v Ahluwalia [1992] 4 All ER 889, CA D had entered into an "arranged marriage" and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. ...read more.

Conclusion

But in determining (in the language of s.3 of the Homicide Act 1957) "whether the provocation was enough to make a reasonable man do as he did" the jury must consider the effect of that provocation on a person of the same age and sex as the defendant, but with ordinary powers of self-control. In some cases (such as Morhall) that might mean a glue-sniffer with ordinary powers of self-control, but the jury should not at this point take into account any individual peculiarities such as mental abnormality (which can be more appropriately dealt with through a defence of diminished responsibility) or intoxication. R v James, R v Karimi [2006] EWCA Crim 14 Dismissing two conjoined appeals by defendants convicted of murder, a five-judge Court of Appeal said it is the decision of the Privy Council in Holley, rather than that of the House of Lords in Morgan Smith, that is now to be followed as a correct statement of English law. Although in all normal circumstances the Court of Appeal is bound to follow a decision of the House of Lords (and is not bound to follow decisions of the Privy Council), the circumstances surrounding the decision in Holley were exceptional, and even the three members in the minority in that case had accepted that the majority decision settled the matter for England as well as for Jersey. ...read more.

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